Delhi District Court
State vs . Ajruddin on 27 July, 2021
IN THE COURT OF MS. MEDHA ARYA MM (N.I. Act-03) SOUTH-WEST: DWARKA COURTS: NEW DELHI CNR No. DLWT020001482009 Case No. 64400/16 FIR No.548/07 PS: Rajouri Garden U/s.279/338 IPC State Vs. Ajruddin Date of Institution of case : 08.09.2009 Date of which Judgment reserved : 31.03.2021 Date on which judgment pronounced : 27.07.2021 JUDGMENT
1) Unique ID no. of the case : DLWT020001482009 2) Date of commission of offence : 15.07.2007 3) Name of complainant : Avdhesh Kumar 4) Name and address of accused : Ajruddin, s/o Jalaluddin, R/oTakiya
Azad Gaan, Katra Samsher Khan, Opp Masjid, Etawah, UP 206001
5) Offence complained of : Section 279/338 IPC & 3/181 and 5/180 Motor Vehicle Act
6) Plea of accused : Not guilty and claim trial
7) Final Order : Convicted U/s.279/338 IPC
8) Date of order : 27.07.2021 BRIEF REASONS FOR DECISION Trial
1. The case of the prosecution in brief, as culled out from the charge sheet, is that on 15.07.2007 at about 5.20 PM, the accused while MEDH Digitally signed by MEDHA ARYA A ARYA 16:17:41 +05'30' Date: 2021.07.27 1 FIR No. 548/2007 State vs Ajruddin driving rashly and negligently the car bearing registration number DL8CN7286 Hyundai Verna, hit the complainant Avdhesh Kumar, who was standing outside Appeal Showroom, Main Market, Rajouri Garden, Delhi. The car being driven by the accused herein ran over the leg of the complainant, on account of which the complainant suffered hurt. The complainant was admitted to a hospital and thereafter upon his statement, an FIR under section 279/337 IPC was registered against the accused.
2. After conclusion of investigation, the present chargesheet under section 279/338 IPC as well as for offences punishable under Section 3/181 and 5/180 Motor Vehicle Act was filed. The accused was accordingly summoned and supplied with a copy of the chargesheet in compliance of section 207 CrPC. Thereafter, a formal notice under section 279 /338IPC was served upon the accused vide order dated 18.11.2011. However, no notice was framed against the accused for the offence punishable under Motor Vehicles Act. The accused pleaded not guilty to the offences punishable u/s 279/338 IPC and claimed trial. The matter was then fixed for PE.
3. To prove its case that the accident and the consequential injury MEDHA Digitally signed by MEDHA ARYA ARYA Date: 2021.07.27 16:17:58 +05'30' 2 FIR No. 548/2007 State vs Ajruddin that was caused to the complainant Avdhesh Kumar was due to the act of the accused in driving the offending vehicle bearing registration number DL8CN7286 in a rash and negligent manner, the prosecution examined a total of six witnesses.
4. The first witness examined by the prosecution was the complainant/injured Avdhesh Kumar himself. In his examination in chief, PW1 deposed on oath that on 15.07.2007 at about 5:15 PM, when he was standing outside appeal showroom in Rajouri Garden market, a car bearing registration number DL8CN7286 hit him. PW1 deposed that the car was driven by the accused, whose identity was not disputed at the time of recording of the evidence, and the accused was driving the offending vehicle in a rash and zigzag manner and at a high speed. PW1 deposed on oath that the car ran over his left leg. PW1 further deposed that even after causing the accident, the accused did not stop the car and continued to drive the same in negligent manner as described above, before it was stopped by general public after about a distance of 50 m at the T point. PW1 further deposed that certain people from the general public put him on the rear-seat of the offending car and asked the accused to take him to the hospital. The accused, however, drove the car for only about 500 m before abandoning the same at MEDHA Digitally signed by MEDHA ARYA ARYA Date: 2021.07.27 16:18:12 +05'30' 3 FIR No. 548/2007 State vs Ajruddin an isolated place. PW1 has further testified on oath that thereafter, he called the PCR at 100 number and after 15 minutes the police came and took him to Max Hospital Pitampura where his statement Ex PWA/1 was recorded. PW1 further deposed that subsequently the accused also reached the hospital with his family members and was arrested by the police vide arrest memo Ex PW1/B bearing his signatures at point A. PW1 also deposed on oath that he could identify the offending vehicle, but the accused did not dispute the identity of the vehicle either.
PW1 was cross examined at length by the accused. In his cross-examination, PW1 deposed that on the date of the incident he had gone to Rajouri Garden market for some shopping and to meet his friend at Appeal Showroom. PW1 deposed in his cross-examination that he had made the call to the PCR at 100 number from his own phone mobile phone and the same is still in a working condition. PW1 further deposed that he could not confirm if the police had examined any public witnesses who were present at the spot and also deposed that he did not take any particulars of any such public witnesses. PW1 deposed that he had stated to the police that the accused had abandoned the car at an isolated place, and was confronted and contradicted with his statement recorded under section 161 CrPC Ex PW1/A wherein it is not so recorded. PW1, however, maintained his stand that he MEDHA Digitally signed by MEDHA ARYA ARYA Date: 2021.07.27 16:18:26 +05'30' 4 FIR No. 548/2007 State vs Ajruddin was taken to the hospital by the police, who took him out of the offending car. PW1 denied the suggestion that it was not possible for the accused to drive the vehicle at a high speed in the market as the market was very crowded on the date of the incident. PW1 further deposed that he does not remember if there was any other vehicle following the offending vehicle at the time of the accident. PW1 further denied the suggestion that he was hit by some other vehicle and not the offending car and it is due to this reason that he could not specify the particulars of the witnesses present at the time of the accident.
5. Prosecution next examined retired SI Ram Avtar as PW2. PW2 deposed that on 15.07.2007, that is the date of the incident, he was posted as a DO writer at police Station Rajouri Garden and his duty hours were from 5 PM to 1 AM. PW2 deposed that on the said date, at about 12:30 AM, HC Sunil Kumar handed over to him a Rukka sent by ASI Dilawar Singh and on the basis of the same he registered the FIR Ex. PW2/ A which bears his signatures at point A. PW2 further deposed that he made the endorsement on the Rukka Ex PW2/B bearing his signatures at point A. PW2 deposed that he handed over the copy of the FIR as well as the original Rukka to head constable Sunil Kumar. PW2 was not cross-examined despite opportunity MEDHA Digitally signed by MEDHA ARYA ARYA Date: 2021.07.27 16:18:40 +05'30' 5 FIR No. 548/2007 State vs Ajruddin being accorded.
6. Prosecution next examined ASI Sunil as PW3, who deposed that on the date of the incident he was posted at police Station Rajouri Garden as a head constable. PW3 deposed that when he received the information regarding the accident vide DD number 30 6A, he reached Max Hospital Pitampura along with IO SI Suresh Chand. PW3 deposed that the IO collected the MLC of the injured from the hospital and also recorded his statement exhibit PW1/A. PW3 deposed that the IO thereafter prepared the Rukka and handed over the same to him, which he brought back to the police station for the purpose of registration of the FIR. PW3 correctly identified the accused present in the court on the date of his testimony and deposed on oath that the accused was present at the hospital at the time when he reached the hospital along with the IO. PW3 deposed that the injured had disclosed in the hospital about the identity of the accused as the driver of the offending vehicle which caused the accident that resulted in injuries to him. PW3 further deposed that thereafter, he along with the IO went to the spot along with the offending vehicle and the site plan was prepared. PW3 deposed that the accused was arrested in his presence vide arrest memo Ex PW1/B which bears his signatures at point B and also relied upon the personal search MEDHA Digitally signed by MEDHA ARYA ARYA Date: 2021.07.27 16:18:53 +05'30' 6 FIR No. 548/2007 State vs Ajruddin memo Ex PW3/A of the accused, bearing his signatures at point A. PW3 deposed that the offending vehicle was taken into possession vide seizure memo Ex PW3/B bearing his signatures at point A and the documents of the car were taken into possession with a memo Ex PW3/C, also bearing his signatures at point A. PW3 deposed that his statement was also recorded by the IO and after the completion of the proceedings he along with the IO reached back the police station and deposited the case property in the Malkhana. PW3 further deposed that he can identify the offending vehicle ( but the identity of the vehicle was not disputed by the accused).
In his cross-examination by the accused, PW3 deposed that he does not remember if it was mentioned in DD number 36 A that the same was marked to ASI Suresh Chand. The said document exhibit PW3/DX1 was then shown to the witness, who upon its perusal, stated that it is not so mentioned in the document. PW3 stated that he had not gone through the contents of the Rukka prepared by the IO. PW3 accepted as correct the suggestion that ASI Suresh Chand had not prepared the Rukka. The attention of the witness was then drawn to the Rukka exhibit PW3/DX2 and upon its perusal, PW3 admitted that the same was prepared by ASI Dilawar Singh. At this stage of his testimony, PW3 volunteered that he had gone to the hospital along with SI Dilawar Singh and he had inadvertently mentioned the name MEDHA Digitally signed by MEDHA ARYA ARYA Date: 2021.07.27 16:19:12 +05'30' 7 FIR No. 548/2007 State vs Ajruddin as ASI Suresh Chand. PW3 accepted as correct the suggestion that ASI Suresh Chand did not join the investigation in his presence. PW3 further deposed in his cross-examination that he did not remember if the injured had accompanied him as well as the IO to the site of the incident or not. PW3 further deposed that he does not know at whose instance the site plan was prepared by the IO. PW3 deposed that they did not ask any of the shopkeepers or any other members of the general public to join the investigation as no one was present and the shops had already shut down. PW3 denied the suggestion that he neither visited the hospital with the IO nor signed the memos and all of the documents were signed by him in the police station at the instance of the IO.
7. Smt. Dimple Singh, medical record technician, Max Hospital Pitampura Delhi was examined by the prosecution as PW4. In her examination in chief, PW4 deposed that she has been working at Max Hospital since the year 2007 and after receiving the summons on 3.07. 2019, she could not find any details regarding the patient Avdhesh. PW4 further deposed in her examination in chief that Dr Imran had left the services of the hospital in the year 2008, but that she could identify his signatures on the document Ex PW4/1. PW4 was not cross-examined by the accused despite MEDHA Digitally signed by MEDHA ARYA ARYA Date: 2021.07.27 16:19:27 +05'30' 8 FIR No. 548/2007 State vs Ajruddin opportunity been given. PW4 was discharged as a witness thereafter.
8. The owner of the car being the offending vehicle Amit Kapoor was examined by the prosecution as PW5. In his examination in chief recorded on 5.07.2019, PW5 deposed that he had purchased the offending vehicle bearing registration number DL8CN7286 in the year 2007. PW5 further deposed that his servant, that is the accused herein, did not know how to drive a car and the accident was caused by him when he was unauthorisedly trying to move the car. PW5 deposed that he received the notice under section 133 of the Motor Vehicles Act Ex PW5/A on 18.07.2017. PW5 correctly identified the accused present in the court. PW5 was not cross-examined by the accused at the first instance, despite opportunity. However, PW5 was recalled for cross-examination under Section 311 CrPC on an application of the accused and was cross examined on 24 January 2020.
In his cross-examination at length, PW5 deposed that he had employed the accused about a year/ year and half prior to 2007 for domestic work and the accused had left his employment after lapse of about 5 to 6 months from the date of the incident. PW5 deposed that the distance between his house and the place of the incident is around 5 to 10 meters and to the MEDHA Digitally signed by MEDHA ARYA ARYA Date: 2021.07.27 16:19:42 +05'30' 9 FIR No. 548/2007 State vs Ajruddin best of his knowledge, there is no showroom by the name and style of Appeal in the vicinity of his house. PW5 further deposed in his cross- examination that he was never called by the police officials at the place of the incident and he does not know as to which place has been shown as the place of the incident by the investigating officer. PW5 deposed in his cross- examination that to the best of his knowledge the accident occurred at about 5 to 10 m near his house and he could depose to this effect as he had seen that the car had been moved from its original place of parking. PW5 deposed that he came to know about the facts of the case as the injured was sitting in his car and was not allowing anybody to enter the car. PW5 deposed that he had taken the injured to the hospital. PW5 accepted as correct the suggestion that he had not seen the accident. However, PW5 denied the suggestion that the accused did not try to move the car or that no accident was caused by the accused while he was so trying. PW5 further denied the suggestion that the accident was not caused by the accused. PW5 also denied the suggestion that he has falsely implicated the accused in connivance with the IO as well as the complainant. PW5 denied the suggestion that the accused is innocent and was implicated in the present case falsely so that the complainant/injured could claim compensation from MACT. PW5 denied the suggestion that it was him who was driving the car on the date of the incident. After this cross-
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examination, PW5 was discharged as a witness.
9. PW-6 proved the mechanical inspection report of the vehicle Ex PW6/A, as per which the vehicle was found fit for road. PW6 was not cross examined despite opportunity.
10. The IO of the case retired SI Dilawar Singh was examined by the prosecution as the next witness, PW7. In his examination in chief, PW7 deposed that on 16.07.2007, he was posted at PS Rajouri Garden as an ASI and upon receiving the information vide DD number 36A regarding the accident, he along with HC Sunil Kumar reached Max Hospital Pitampura where he found the injured to be admitted in the hospital. PW7 deposed that he recorded the statement of the injured Avdhesh Ex PW1/A bearing his signatures at point B. PW7 further deposed that when he reached the hospital, there were two other persons found sitting in the hospital namely Ajruddin, the accused here-in, as well as Amit/PW5. PW7 deposed that the injured told him that Ajruddin i.e. the accused had caused the accident while driving the offending vehicle DL8CN7286. PW7 deposed that he gave the notice Ex PW7/A bearing his signatures at point A under Section 133 motor Vehicle Act to the owner of the offending vehicle and the reply given by the MEDHA Digitally signed by MEDHA ARYA ARYA Date: 2021.07.27 16:20:19 +05'30' 11 FIR No. 548/2007 State vs Ajruddin said owner to the notice is Ex PW5/A. PW7 deposed that he had prepared the Rukka on the basis of which head constable Sunil Kumar got the FIR registered. PW7 further deposed that he had gone to the site of the accident along with the accused and prepared the site plan Ex PW7/B bearing his signatures at point A at the instance of the injured as well as the accused. PW7 further deposed that he seized the offending vehicle vide seizure memo exhibit PW3/B which bears his signatures at point B. In the meantime, as per the testimony of PW7, HC Sunil Kumar returned back to the spot and handed over the FIR as well as the original Rukka to him. PW7 deposed that he also seized the documents of the vehicle vide memo Ex PW3/C bearing his signatures at point B and also arrested the accused vide arrest memo Ex PW1/B bearing his signatures at point B and conducted his personal search vide memo Ex PW3/E bearing his signatures at point B. PW7 then deposed that the accused was thereafter released on bail and he along with HC Sunil Kumar deposited the case property with the Malkhana of the police station. PW7 deposed that the mechanical inspection report of the vehicle is Ex PW6/A. PW7 also relied upon the mechanical inspection report of the vehicle PW6/A. PW7 deposed that he can both identify the accused as well as the offending vehicle. But the accused chose to not dispute either his identity or that of the offending vehicle.
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In his cross-examination PW7 deposed that when DD No. 36 A was received, he was present in the police station. However, he later resiled and said that he did not remember whether he received the DD while at the police station. PW7 deposed that the injured had told him that the spot of the accident is near Appeal store in Rajouri Garden market but when he reached the spot, all the other shops near the spot were already closed. PW7 deposed that he enquired from the general public as well as the person working at the store regarding the accident but they replied that they have not witnessed the accident but were aware that some accident had taken place. PW7 deposed that there were no blood marks or blood stains on the spot of the incident and he did not take photographs of the offending vehicle. PW7 deposed voluntarily that he did not take any photographs of the offending vehicle as there was no bleeding and there were no damage or blood marks/stains on the car. PW7 deposed that he had given the notice under section 133 motor vehicle act to the owner of the offending vehicle prior to the registration of the FIR and was not aware about the FIR number of the present case at the time of serving the said notice upon the owner. PW7 volunteered that he entered the particulars of the FIR on the Rukka after receiving the copy of the Rukka and the FIR on the spot. PW7 deposed that he does not remember as to who had taken the injured to the hospital from the spot. PW7 deposed MEDHA Digitally signed by MEDHA ARYA ARYA Date: 2021.07.27 16:20:49 +05'30' 13 FIR No. 548/2007 State vs Ajruddin in his cross-examination that he did not get the TIP proceedings of the accused conducted and volunteered that the accused had already been identified by the injured at the hospital, and there was no requirement of any identification parade. PW7 deposed in his cross examination that he did ask the owner of the vehicle as to how he came to know about the accident but did not mention the said fact in his statement under section 161 CrPC. PW7 further deposed that he had not confirmed the site plan by getting it corroborated by any public/eye witnesses and the same was prepared at the order or direction of the injured given by him while the latter was still admitted in the hospital, as well as the accused. PW7 deposed that the arrest memo Ex PW1/B was prepared at the spot but he had already obtained the signatures of the injured Avdhesh Kumar on the arrest memo at the hospital, upon his identification of the accused. PW7 denied the suggestion that the spot of the incident was thickly crowded on the date of the incident, it being a Sunday. PW7 accepted as correct the suggestion that the spot of the incident is at a market. PW7 denied the suggestion that no vehicle could have been driven beyond the speed of 5 to 6 km/h at the spot of the incident on account of the heavy crowd, or that he did not join deliberately any public witness to the investigation, or that no accident was caused by the accused and the accused has been falsely implicated, being an employee/servant of MEDHA Digitally signed by MEDHA ARYA ARYA Date: 2021.07.27 16:21:01 +05'30' 14 FIR No. 548/2007 State vs Ajruddin the owner of the offending vehicle.
11. No other witnesses were examined by the prosecution and PE was closed thereafter.
12. The accused was then examined under Section 313 CrPC. All the incriminating evidence was put to the accused and the accused took the defence that he has been falsely implicated in the present case by his erstwhile employer Amit Kapoor and also stated that he was inside the Appeal showroom when the accident took place and had later reached the hospital along with Amit Kapoor, at the instance of the latter. The accused further stated in his examination that he was falsely implicated by his employer and thereafter, was also removed from the employment by Amit Kapoor. The accused chose to not lead any defence evidence.
13. The matter was thereafter fixed for final arguments. Ld. APP for the state argued that the prosecution has been able to establish its case beyond reasonable doubt on the basis of the evidence of all its witnesses.
Per contra, it was argued by Ld. counsel for the accused that PW1 has failed to prove that the accused was driving the car in any rash or MEDHA Digitally signed by MEDHA ARYA ARYA Date: 2021.07.27 16:21:14 +05'30' 15 FIR No. 548/2007 State vs Ajruddin negligent manner. It was further argued by Ld counsel for the accused that the testimony of PW-5 Amit Kapoor in his cross examination shows that the accident never occurred as per the story of the prosecution, as the vehicle was parked near the residence of the said witness, who is the owner of the vehicle. Ld Counsel also adverted to the testimony of PW-1 and argued that there are major contradictions in the testimony of PW1, such as PW1 never deposed in his statement before the police under section 161 CrPC that it was not the accused but the PCR which had taken him to the hospital after the accused had abandoned the offending vehicle on the road, at some distance from the site of the accident. It was argued by ld. counsel for the accused that the testimony of PW1 is fraught with contradictions and these contradictions show that the testimony of PW1 suffers from such incurable infirmities and as such, it cannot be used against the accused, and plugs loopholes in the case of the prosecution. It was further argued on behalf of the accused that the fact that the Rukka contains the number of the FIR, although admittedly as per the testimony of PW7 the FIR was prepared after the preparation of the Rukka, shows that the said document is not genuine. Similarly, it was argued that from the testimony of PW5 Amit Kapoor who testified that the site of the accident was near his residence in Pitampura, as well as the fact that the injured never visited the spot, the veracity of the site MEDHA Digitally signed by MEDHA ARYA ARYA Date: 2021.07.27 16:21:28 +05'30' 16 FIR No. 548/2007 State vs Ajruddin plan also becomes doubtful. It was further argued by ld. counsel for the accused that the injured was taken to Max Shalimar Bagh which is closer to the residence of PW5 in Pitampura but not as proximate to the alleged site of the accident, that is Rajouri Garden, and this also creates doubts over the version of the prosecution regarding the alleged accident. Ld. counsel argued that the prosecution has failed to prove its case beyond reasonable doubt and the accused is entitled to be acquitted for the offences punishable under section 279/338 IPC.
14. I have heard the submissions made by the parties and have also carefully perused the material available on the record. Considered.
15. In the case at hand, the accused has been charged with the offence punishable u/s 279/338 IPC. In order to secure the conviction of the accused u/s 279 IPC, it was incumbent upon the prosecution to prove that:
(i) That the vehicle in question was driven by the accused.
(ii) That the vehicle in question was being driven on any public way.
(iii) That the vehicle was being driven in a rash and negligent manner so as to- (a)endanger human life, or (b) likely to cause hurt or injury to any Digitally signed by MEDHA ARYA MEDHA ARYA Date: 2021.07.27 16:21:41 +05'30' 17 FIR No. 548/2007 State vs Ajruddin person.
In order to secure the conviction of the accused for the offence u/s 338 IPC, in addition to the aforementioned facts, the prosecution was required to prove that the driving has resulted in actual grievous hurt to any human being(the complainant herein).
16. So far as the identity of the offending vehicle is concerned, the accused at no stage of trial has taken a plea that the vehicle bearing registration no. DL 8CN 7286 was not involved in any accident. The cross examination of PW1 -PW7 shows that the accused has not denied the identity of offending vehicle, except for a feeble suggestion that was made to PW1 to the effect that another vehicle driving behind the offending vehicle was actually involved in the accident, or a suggestion to the IO/PW-7 that the accident was not caused from the offending vehicle as it had no blood stains etc. Neither of these suggestions help the case of the accused. The first one establishes the presence of the vehicle at the spot, and when viewed in conjunction with the defence taken by the accused himself at the stage of 313 CrPC, that is, the accident being caused by the owner of the vehicle, negates the line of defence that the offending vehicle was not involved in the accident. Merely giving suggestions that the vehicle did not have any MEDHA Digitally signed by MEDHA ARYA ARYA Date: 2021.07.27 16:21:55 +05'30' 18 FIR No. 548/2007 State vs Ajruddin bloodstains and therefore was not involved in the accident is also not sufficient, in the absence of any evidence in the affirmative being led by the accused, to establish that the said vehicle was not involved in the accident. Further, the very fact that in his statement under section 313 CrPC, the accused has taken the defense that the vehicle was driven by his employer, that is the owner of the vehicle at the time of the accident, reflects the admission of the accused to the effect that the offending vehicle bearing registration number DL8CN7286 was involved in the accident .
17. It is next to be examined if the identity of the accused as the driver of the offending vehicle has been established by the prosecution beyond reasonable doubt. The accused, as per the version of the prosecution, was identified by the injured/PW-1 in the hospital as the driver of the offending vehicle. Now, the story of the prosecution is that the injured, after he suffered injuries caused by the accused driving the offending vehicle in a rash and negligent manner, was put in the car of the accused who drove the injured for a certain distance before abandoning the car. The injured thus had sufficient contact with the accused, before the accused reached the hospital. The injured Avdhesh Kumar then identified the accused as the driver of the offending vehicle. The accused was arrested in the hospital at the Digitally signed by MEDHA MEDHA ARYA ARYA Date: 2021.07.27 16:22:10 +05'30' 19 FIR No. 548/2007 State vs Ajruddin identification of the injured, at the hospital where he was taken for treatment. The fact that TIP of the accused was not conducted does not weaken the case of the prosecution given the above background, as the facts of the case show that identification of the accused by the injured Avdhesh kumar needs no corroboration. The argument of the accused to the contrary is liable to be rejected. Furthermore, it is a well settled position of law that the testimony of an injured witness must be accorded more sanctity, as an injured witness has no interest in saving the real culprit and falsely implicating another. The testimony of PW 1 to the effect that the accident was caused by the accused inspires the confidence of this court, as he remained consistent even during his cross-examination. The identity of the accused as the driver of the offending vehicle on the date of the incident is also established from the testimony of PW3 ASI Sunil, who has deposed on oath that the accused was present in the hospital and was arrested from there vide arrest memo Ex PW 1/B. Further, PW5 Amit Kapoor, the owner of the car being the offending vehicle also deposed in his examination in chief that the accident was caused by the accused while he was shifting the car. In his cross-examination, while PW5 stated that he is not aware of any showroom in the name and style of Appeal, he remained consistent in stating that the accident was caused at about 5 to 10 m near his house, by the accused when the latter was trying to MEDH Digitally signed by MEDHA ARYA A ARYA 16:22:24 +05'30' Date: 2021.07.27 20 FIR No. 548/2007 State vs Ajruddin shift his car in an unauthorised manner. An analysis of the defence taken by the accused in his statement under 313 CrPC also reveals that the accused has categorically admitted his presence at the hospital where the injured/complainant was taken after the accident, and has also admitted that he was arrested vide arrest memo Ex PW1/B while at the hospital. The defense that has been taken by the accused is that the accident was not caused by him but by his employer PW5/Amit Kapoor, and he had accompanied the latter to the hospital. However, no evidence in the affirmative has been led by the accused in support of this line of defence. In order to probabalise this defence, the accused gave a few suggestions to PW1 and PW7 (the IO) to the effect that the accident was in fact caused by PW5, but this by itself, without any evidence in the affirmative, can have no probative value. This Court is also of the opinion that minor contradictions in the testimony of PW1 regarding the fact as to how he reached the hospital are also not sufficient to discredit his testimony, when the fact that the PCR call was made is evident from the perusal of DD No. 36A. In the absence of any cogent proof to the effect that the accident was caused by his employer Amit Kapoor and not by the accused himself, the presence of the accused in the hospital coupled with the fact that PW1, PW2 and PW5 have remained consistent in their version as to the identity of the accused, the identity of the MEDHA Digitally signed by MEDHA ARYA ARYA Date: 2021.07.27 16:22:37 +05'30' 21 FIR No. 548/2007 State vs Ajruddin accused as the driver of the offending vehicle at the time of the accident also stands established.
18. A line of defence has been taken by the accused to the effect that no such accident took place. Ld counsel for the accused argued that as per the version of the prosecution, the place of the accident is near Appeal showroom, Rajouri Garden main market. Ld counsel argued that it is the case of the prosecution that the accident took place while the accused was shifting the car in an unauthorized manner, which car was parked outside the residence of PW5 Amit Kapoor, who is the owner of the car. Ld counsel adverted to the testimony of PW5 Amit Kapoor and stated that the said witness resides nowhere near the place of accident but resides at Shalimar Bagh, and therefore it is not plausible that he would have parked his car in Rajouri Garden Main market. This argument raised by the accused, however, does not find favour with this court. While PW5 stated at the time that his testimony was recorded that he lives in Shalimar Bagh, the said fact cannot lead to the conclusion that the witness resided at Shalimar Bagh at the time of the accident also. In fact, the arrest memo shows that the accused had also stated his address to J7/187 Rajouri Garden at the time the accident took MEDHA Digitally signed by MEDHA ARYA ARYA Date: 2021.07.27 16:22:51 +05'30' 22 FIR No. 548/2007 State vs Ajruddin place. The report of the summons served to PW5/Amit Kapoor in 2013 annexed on the court record, as well as the report of the notice issued to the owner of the car Amit Kapoor under the Motor Vehicles Act also reflects that PW5 previously resided at Rajouri Garden, which is near to the place where the accident took place. Further, PW5 has himself admitted that the accident had taken place about 5 to 10 m from the place where he lived, and even though the said witness testified that he is unaware of the name of any showroom called Appeal, his testimony to the effect that the accident took place near his residence corroborates the case of the prosecution
19. Now it remains to be examined if the prosecution has been able to prove that the accident took place due to the rash and negligent act of the accused. At this juncture, this court seeks to place reliance on the judgment of the Hon'ble Supreme Court of India Mohd. Ayanuddin vs State of Andhra Pradesh (2000)7 SCC 72 thus, "A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and MEDHA Digitally signed by MEDHA ARYA ARYA Date: 2021.07.27 16:23:05 +05'30' 23 FIR No. 548/2007 State vs Ajruddin proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the duty of the driver of a vehicle to adopt such reasonable and proper care and precaution."
PW1 has deposed on oath that the accident took place when he was standing outside Appeal showroom in Rajouri Garden market, and the car of the accused being driven in a zigzag manner hit him. It is on record that the accident took place in the market area, and the testimony of PW 1 to the effect that the accused was driving the car in a zigzag manner establishes the negligence of the accused in driving the car. The testimony of PW5 further establishes that the accused was not authorised to drive the car, and irrespective of the same he drove the car resulting in the accident and the consequent injury was caused to the complainant. In his statement under section 313 CrPC also, the accused has himself admitted that he did not know how to drive the car and he was only employed to clean the car besides doing other jobs for his employer Amit Kumar/PW5. These facts establish that the accused Ajruddin was not authorized to drive the car, despite which he decided to shift the car while it was parked in a crowded market area, resulting in the accident. These factors, cumulatively, establish the negligence of the accused leading to the accident and the injury caused to the complainant. Further, the mechanical inspection report of the car exhibit MEDHA Digitally signed by MEDHA ARYA ARYA Date: 2021.07.27 16:23:23 +05'30' 24 FIR No. 548/2007 State vs Ajruddin PW6/A, duly proved as per the testimony of PW6, also establishes that the vehicle was fit for road test and therefore the accident was not caused on account of any fault in the vehicle but because of the negligence of the accused. It was argued by ld. counsel for the accused that the case of the prosecution falls as the site of the alleged accident is stated to be in a crowded marketplace on Sunday, where it was not possible for the accused to be driving of the offending vehicle at a high speed. However, it is laid down in a catena of judgments that negligence has little to do with speed, and more to do with the manner in which the vehicle was being driven. The testimony of PW 1 to the effect that the vehicle was being driven in a zigzag manner, at the cost of reiteration, establishes the negligence of the accused leading to the accident. PW1 has also deposed that the vehicle was driven at a high speed, and the same may be construed to be higher speed than is considered prudent while driving/backing a vehicle in a market place. The other argument taken by the counsel for the accused to the effect that no public witnesses were examined by the IO, and this weakens the case of the prosecution is also liable to be discarded, as the investigation commenced only after the IO reached the hospital. The IO could not have joined eye witnesses to the investigation then, as he reached the place of incident at a later stage. Further, it is well settled that testimony of even one reliable MEDHA Digitally signed by MEDHA ARYA ARYA Date: 2021.07.27 16:23:38 +05'30' 25 FIR No. 548/2007 State vs Ajruddin witness is sufficient to establish a case and it is the quality of the witness and not the quantity that is the determinative factor. The testimony of PW1 is found creditworthy, and along with testimonies of other witnesses, clearly establishes the case of the prosecution.
20. The observations in the foregoing paragraphs lead this court to the conclusion that the accident was caused on account of the negligent driving of the accused, and makes him liable u/s 279 IPC also. Besides the testimony of PW1, the testimony of PW4 which proves the MLC Ex PW4/1, as well as the document itself proves that the injured had suffered grievous hurt on account of the accident. The document has not been controverted. The accused is thus guilty of the offence punishable under Section 338 IPC also.
CONCLUSION
21. In view of the observations, this Court is of the view that the prosecution has successfully proved its case. It has been proved that the accused caused grievous hurt to the complainant/injured Avdhesh Kumar, while driving the offending vehicle negligently. Accordingly, the accused Ajruddin s/o Sh Jalaluddin is convicted for the offence punishable u/s 279/338 IPC.
MEDHA Digitally signed
by MEDHA ARYA
ARYA Date: 2021.07.27
16:23:55 +05'30' 26
FIR No. 548/2007 State vs Ajruddin
List for arguments on sentence on 09.08.2021.
Copy of this judgment be given to accused free of cost.
MEDHA Digitally signed
by MEDHA ARYA
Announced in open Court on ARYA Date: 2021.07.27
16:24:10 +05'30'
27.07.2021 (MEDHA ARYA)
( 27 pages) M.M.(NI-03)/SW/Delhi
27
FIR No. 548/2007 State vs Ajruddin